U.S. v. Hashimoto, 87-1332

• Decision Date: 11 September 1989
• Docket Number: No. 87-1332,87-1332
• Citation: 878 F.2d 1126
• Parties: -5574, 89-2 USTC P 9432 UNITED STATES of America, Plaintiff-Appellee, v. Daniel T. HASHIMOTO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1126

878 F.2d 1126

66 A.F.T.R.2d 90-5574, 89-2 USTC P 9432

UNITED STATES of America, Plaintiff-Appellee, v. Daniel T. HASHIMOTO, Defendant-Appellant.

No. 87-1332.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 10, 1988.

Decided June 21, 1989.

Rehearing and Rehearing En Banc Denied Sept. 11, 1989.

Earle A. Partington, Honolulu, Hawaii, for defendant-appellant, Daniel T. Hashimoto.

Leslie E. Osborne, Jr., Asst. U.S. Atty., Honolulu, Hawaii, for plaintiff-appellee, the U.S.

Appeal from the United States District Court for the District of Hawaii.

Before NELSON, REINHARDT and WIGGINS, Circuit Judges.

NELSON, Circuit Judge:

Daniel T. Hashimoto was indicted on three counts of failing to file an income tax return, in violation of 26 U.S.C. Sec. 7203. He was convicted on two counts. On appeal, Hashimoto first seeks reversal of his conviction on the grounds that the district court improperly denied his motion for release of the jury panel list for his trial, which Hashimoto sought so that he could obtain juror tax information under 26 U.S.C. Sec. 6103(h)(5). Second, Hashimoto challenges the district court's refusal to ask the prospective jurors, during voir dire, whether they feared retaliation from the

IRS if they were to acquit the defendant. We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

On February 12, 1987, a three count indictment was handed down against the defendant, Daniel T. Hashimoto, alleging that he willfully failed to file income tax returns for the years 1979, 1980, and 1981, in violation of 26 U.S.C. Sec. 7203. On April 14, 1987, Hashimoto filed 34 pretrial motions. Motion # 26 requested that the court order the jury clerk to disclose to Hashimoto the jury panel list for his trial, pursuant to 26 U.S.C. Sec. 6103(h)(5). The government opposed this motion in a response that discussed 23 of the original 34 motions. In reviewing these 23 motions, the magistrate granted only five of them, and Motion # 26 was not among those granted. ¹ On July 20, 1987, ² the district court, per Judge Alan C. Kay, affirmed the magistrate in all respects. ³ During voir dire, conducted on the same day, Hashimoto renewed his objection to the failure to grant Motion # 26. Magistrate Bert Tokairin, who was conducting voir dire, simply noted this objection on the record after the government told him that the District Court had affirmed the Magistrate on this issue.

The defendant had also submitted 90 proposed voir dire questions. ⁴ Proposed Question No. 35 was as follows:

Are you afraid of the IRS, and do you fear the liklihood [sic] that the IRS will seek retribution against you if you were to render a verdict of acquittal for an innocent defendant? If so, ... would this fear or concern affect in any way your ability to be a fair and impartial juror?

The magistrate reviewed the proposed questions, and covered some of them in the course of his questioning of the prospective jurors. However, no question was asked that was comparable to, or covered the same subject matter as, Question No. 35. Although defense counsel did specifically request at voir dire that the magistrate ask some of the questions that had been submitted, the defense did not go over the proposed questions one by one, and no specific reference to Question No. 35 was made. Instead, counsel stated that, for the remainder, he would "stand on the record as to what we submitted."

The jury was impaneled on July 20, 1987, and the trial began three days later. On July 30, the jury returned a verdict of guilty on the first two counts of the indictment (i.e. failure to file a return for 1979 and 1980), but acquitted Hashimoto on the third count (failure to file for 1981).

On August 6, Hashimoto filed a motion for a judgment of acquittal on counts I & II or, in the alternative, for an evidentiary hearing or a new trial. On September 24, 1987, the court denied Hashimoto's motion without a hearing. Hashimoto filed a motion for reconsideration but it was denied. On October 13, Hashimoto received a sentence of a $5,000 fine and one year in prison on each count, with the prison sentences to run consecutively. The prison sentence on count II, however, was suspended on the condition that defendant be placed on probation for five years after his release from prison on count I. On October 20, 1987, Hashimoto filed a timely appeal to this court. See Fed.R.App.P. 4(b). Hashimoto is currently free pending the resolution of this appeal.

DISCUSSION

1. Introduction

Hashimoto argues that the trial court's failure to grant his motion for a Section 6103(h)(5) states:

jury panel list, which he requested pursuant to 26 U.S.C. Sec. 6103(h)(5), was erroneous and requires that his conviction be reversed. The government argues that the court's ruling was correct because Hashimoto failed to follow the procedures required to invoke his rights under Sec. 6103(h)(5), and that even if the ruling was incorrect, the error was harmless.

In connection with any judicial proceeding described in paragraph (4) ⁵ to which the United States is a party, the Secretary [of the Treasury] shall respond to a written inquiry from an attorney of the Department of Justice (including a United States Attorney) involved in such proceeding or any person (or his legal representative) who is a party to such proceeding as to whether an individual who is a prospective juror in such a proceeding has or has not been the subject of any audit or other tax investigation by the Internal Revenue Service. The Secretary shall limit such response to an affirmative or negative reply to such inquiry.

Unfortunately, this provision, which was enacted as part of the Tax Reform Act of 1976, Pub.L. No. 94-455, Sec. 1202(a)(1), 90 Stat. 1525, 1675 (1976), has never been subject to interpretation in any published opinion. The question posed by this appeal is thus one of first impression.

We begin by noting that the statutory right conferred by this provision is broadly phrased. Section 6103(h)(5) states that the Secretary "shall " respond to a written inquiry from a party to a judicial proceeding pertaining to tax administration. Since the Secretary has no discretion to refuse to provide the information requested, the right to such information is absolute so long as (1) the proceeding is one in which the right conferred by Sec. 6103(h)(5) attaches, and (2) the proper procedures to obtain the information have been followed.

2. Applicability of Section 6103(h)(5)

When Hashimoto initially filed Motion # 26, requesting that he be given a list of prospective jurors so that he could apply to the Secretary for the relevant information, the government resisted the motion solely on the grounds that Sec. 6103(h)(5) "relates only to ADMINISTRATIVE proceedings and was not designed for, nor has it ever been incorporated into criminal proceedings" (emphasis in original). This argument is utterly frivolous--indeed, sanctionable--and the government has wisely not reasserted it on appeal. There are no juries in administrative proceedings, and it would therefore be exceedingly anomalous to confer a right to tax information concerning prospective jurors only in administrative tax proceedings. Furthermore, the legislative history of the provision, while scant, clearly indicates that the provision applies in criminal prosecutions such as the one in this case. See H.R.Conf.Rep. No. 1515, 94th Cong. 2d Sess. 477-78, reprinted in U.S.Code Cong. & Admin.News, 4181-82 (1976) ("(d) Tax criminal cases.... In tax cases, the Justice Department and the taxpayer whose liability is at issue will be allowed to inquire of the IRS

as to whether a prospective juror has been under an audit or investigation by the IRS."). Accordingly, the government does not now dispute that Sec. 6103(h)(5) applies in this case.

3. Procedures for invoking rights under Section 6103(h)(5)

Rather than arguing that Sec. 6103(h)(5) is inapplicable, the government now argues on appeal that the district court's ruling was proper because a jury panel list was ultimately given to the defendant, and yet he failed to file a request with the Secretary. The government claims that, pursuant to the Plan of the United States District Court for the District of Hawaii for the Random Selection of Grand and Petit Jurors [hereinafter "Juror Selection Plan"], Hashimoto was given a jury panel list seven days before voir dire and yet failed to file a written request with the Secretary under Sec. 6103(h)(5).

In evaluating the government's argument, one must first consider what procedure is envisioned by Sec. 6103(h)(5) and then compare that to the procedure that was employed in this case. The statutory provision itself does not describe the procedures to be followed other than to state that the request must be in writing. Nor does the Code of Federal Regulations contain any administrative regulations specifying the procedures that should be followed in order to obtain this information. Therefore, any judgment concerning the proper procedures to be followed under Sec. 6103(h)(5) must be based on a consideration of what procedures will best carry out the purposes of the statute.

It is apparent that a request to the Secretary concerning more than 40 prospective jurors will take some time to process. Furthermore, the request must be in writing, and, given the lack of regulations on this point, must presumably be addressed to the Secretary of the Treasury in Washington, D.C. If the defendant is to obtain this information before voir dire, it seems clear that he or she will have to obtain it sufficiently far in advance of the scheduled trial date to permit a request to be filed and a response to be received. Accordingly, the defendant should be permitted to receive the jury list as soon as it has been drawn. In this case, that means that Hashimoto should have received the list of the more than 40 prospective jurors summoned for this case as soon as these individuals had been...